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EXHIBIT 10.39
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into, at
Irvine, California, as of the ___ day of __________, 2001, by and between
xxxxxxxxx.xxx inc., a corporation duly organized under the laws of the State of
Delaware (the "Company"), with offices at 00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxx, 00000-0000, and Xxxxxxx Xxxxxxxx (hereinafter
referred to as the "Executive"), who resides at 00000 Xxxxxx'x Xxx, Xxxxxxxxx,
Xxxxxxxxxx 00000.
RECITALS
WHEREAS, the Company desires to employ the Executive as Vice Chairman.
WHEREAS, the Executive desires to be so employed by the Company, subject to
the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with reference to the above recitals, the parties hereby
agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
The Company hereby employs the Executive as Vice Chairman and the Executive
hereby accepts such employment by the Company for a period of three (3) years
(the "Term") commencing from ________, 2001 (the "Commencement Date") and
expiring on the third anniversary of the Commencement Date (the "Termination
Date"), which term shall automatically renew for one year periods unless either
party notifies the other of its election not to renew at least thirty (30) days
prior to the Termination Date or any applicable anniversary of the Termination
Date. Notwithstanding the above, in the event of a Change of Control of the
Company prior to January 1, 2002 and while the Executive remains employed by the
Company, the Term shall automatically extend for a period of three (3) years
commencing from the date of the Change of Control. For purposes of this
Agreement "Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation but not including any initial or secondary public
offering) in one or a series of related transactions of all or substantially all
of the assets of the Company taken as a whole to any individual, corporation,
limited liability company, partnership or other entity (each a "Person") or
group of persons acting together (each a "Group") (other than any of the
Company's wholly-owned subsidiaries, any Company employee pension or benefits
plan, or any Person owning at least five (5) percent of the common stock of the
Company as of Xxxxx 00, 0000), (xx) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transactions (including any stock or other purchase, sale, acquisition,
disposition, merger consolidation or reorganization, but not including any
initial or secondary public offering) the result of which is that any Person or
Group (other than any of the
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Company's wholly-owned subsidiaries, any Company employee pension or benefits
plan, or any person or entity owning at least five (5) percent of the common
stock of the Company as of March 31, 2001), becomes the beneficial owners of
more than 40 percent of the aggregate voting power of all classes of stock of
the Company having the right to elect directors under ordinary circumstances; or
(iv) the first day on which a majority of the members of the board of directors
of the Company (the "Board") are not individuals who were nominated for election
or elected to the Board with the approval of two-thirds of the members of the
Board just prior to the time of such nomination or election.
ARTICLE 2
DUTIES AND OBLIGATIONS
2.1 DUTIES. During the Term of this Agreement, the Executive shall: (i)
devote his full business time, attention and energies to the business of the
Company; (ii) shall use his best efforts to promote the interests of the
Company; (iii) shall perform such functions and services as Vice Chairman as
shall be directed by the Chief Executive Officer; and (iv) shall act in
accordance with the policies and directives of the Company; and (v) shall report
directly to the Chief Executive Officer of the Company.
2.2 RESTRICTIONS. Except as provided in Section 9.2(i), the Executive
covenants and agrees that, while actually employed by the Company, he shall not
engage in any other business duties or pursuits whatsoever, or directly or
indirectly render any services of a business or commercial nature to any other
person or organization, including, but not limited to, providing services to any
business that is in competition with or similar in nature to the Company,
whether for compensation or otherwise, without the prior written consent of the
Chief Executive Officer. However, the expenditure of reasonable amounts of time
for educational, charitable, or professional activities shall not be deemed a
breach of this Agreement, if those activities do not materially interfere with
the services required under this Agreement, and such activities shall not
require the prior written consent of the Chief Executive Officer.
Notwithstanding anything herein contained to the contrary, this Agreement shall
not be construed to prohibit the Executive from making passive personal
investments or conducting personal business, financial or legal affairs or other
personal matters if those activities do not materially interfere with the
services required hereunder. In addition to the foregoing, notwithstanding
anything contained herein to the contrary, this Agreement shall not be construed
to prohibit the Executive from serving as a director or board member of any
other corporation, company, or other business entity, subject to the approval of
the Chief Executive Officer.
2.3 LOCATION. The principal location in which the Executive's services are
to be performed will be the Irvine, California area. The Executive shall not be
required to change such principal location in excess of fifty miles beyond the
geographic limits of Irvine, California, without his consent.
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ARTICLE 3
COMPENSATION
3.1 BASE SALARY. As compensation for the services to be rendered by the
Executive pursuant to this Agreement, the Company hereby agrees to pay the
Executive a base salary equal to at least Two Hundred Seventy Five Thousand
Dollars ($275,000.00) per year during the Term of this Agreement, which rate
shall be reviewed by the Board at least annually and may be increased (but not
reduced) by the Board and Chief Executive Officer in such amounts as the Board
deems appropriate. The base salary shall be paid in substantially equal
bimonthly installments, in accordance with the normal payroll practices of the
Company.
3.2 BONUSES. The Company shall provide the Executive with the opportunity
to earn an annual bonus for each fiscal year of the Company, occurring in whole
or in part during the Term. The annual bonus payable to the Executive shall be
in such amount and based on such criteria for the award as may be established by
the Board from time to time. The Executive shall participate in all other short
term and long term bonus or incentive plans or arrangements in which other
senior executives of the Company are eligible to participate from time to time.
Any bonus shall be paid as promptly as practicable following the end of the
preceding fiscal year. The provisions of this Section 3.2 shall be subject to
the provisions of Section 3.4.
3.3 WITHHOLDING. The Company shall have the right to deduct or withhold
from the compensation due to the Executive hereunder any and all sums required
for federal income and employee social security taxes and all state or local
income taxes now applicable or that may be enacted and become applicable during
the Term.
3.4 RIGHT TO SEEK APPROVAL. The Company may provide for shareholder
approval of any performance based compensation provided herein and may provide
for the compensation committee to establish any applicable performance goals and
determine whether such performance goals have been met.
ARTICLE 4
EMPLOYEE BENEFITS
4.1 BENEFITS. The Company agrees that the Executive shall be entitled to
all ordinary and customary perquisites afforded to executive employees of the
Company, at the Company's sole expense (except to the extent employee
contribution may be required under the Company's benefit plans as they may now
or hereafter exist), which shall in no event be less than the benefits afforded
to the Executive on the date hereof and the other executive employees of the
Company as of the date hereof or from time to time, but in any event shall
include any qualified or non-qualified pension, profit sharing and savings
plans, any death benefit and disability benefit plans, life insurance coverages,
any medical, dental, health and welfare plans or insurance coverages and any
stock purchase programs that are approved by the Board on terms and conditions
at least as favorable as
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provided to the Executive on the date hereof and other senior executives of the
Company as of the date hereof or from time to time.
4.2 VACATION. The Executive shall be entitled to four (4) weeks of paid
vacation for each calendar year of his employment hereunder (except this year
which shall be three (3) weeks for the remaining portion of 2001), which, to the
extent unused in any given year, may be carried over in accordance with the
policies of the Company then in effect. Notwithstanding anything to the
contrary, however, the Executive shall not be entitled to carry over any unused
vacation for a period exceeding two (2) years. Subject to the limitations set
forth in this Section, the Executive shall carry over any accrued unused
vacation he has earned during his employment with Xxxxxxx.xxx, Inc. through the
time of the Commencement Date.
ARTICLE 5
BUSINESS EXPENSES
5.1 EXPENSES. The Company shall pay or reimburse the Executive for all
reasonable and authorized business expenses incurred by the Executive during the
Term; such payment or reimbursement shall not be unreasonably withheld so long
as said business expenses have been incurred for and promote the business of the
Company and are normally and customarily incurred by employees in comparable
positions at other comparable businesses in the same or similar market.
Notwithstanding the above, the Company shall not pay or reimburse the Executive
for the costs of any membership fees or dues for private clubs, civic
organizations, and similar organizations or entities, unless such organizations
and the fees and costs associated therewith have first been approved in writing
by the Chief Executive Officer.
5.2 TRAVEL COSTS. The Company shall reimburse the Executive for expenses
incurred with business-related travel. Notwithstanding the above, the Company
shall not pay or reimburse the Executive for the costs of any business-related
airline travel to the extent such costs exceed the cost of Coach Class travel
for flights of four (4) hours or less, or for flights longer than four (4)
hours, Business Class.
5.3 RECORDS. As a condition to reimbursement under this Article 5, the
Executive shall furnish to the Company adequate records and other documentary
evidence required by federal and state statutes and regulations for the
substantiation of each expenditure. The Executive acknowledges and agrees that
failure to furnish the required documentation may result in the Company denying
all or part of the expense for which reimbursement is sought.
ARTICLE 6
TERMINATION OF EMPLOYMENT
6.1 TERMINATION FOR CAUSE. The Company may, during the Term, without
notice to the Executive, terminate this Agreement and discharge the Executive
for Cause,
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whereupon the respective rights and obligations of the parties hereunder shall
terminate; provided, however, that the Company shall immediately pay the
Executive any amount due and owing pursuant to Articles 3, 4, and 5, prorated to
the date of termination. As used herein, the term "for Cause" shall refer to the
termination of the Executive's employment as a result of any one of the
following: (i) any conviction of, or pleading of nolo contendere by, the
Executive for any misdemeanor involving moral turpitude which if committed at
the work place or in connection with employment would have constituted violation
of Company policy or felony; (ii) any willful misconduct of the Executive which
has a materially injurious effect on the business or reputation of the Company;
(iii) the gross dishonesty of the Executive which has a materially injurious
effect on the business or reputation of the Company; or (iv) failure to
consistently discharge his duties under this Agreement which failure continues
for thirty (30) days following written notice from the Company detailing the
area or areas of such failure. For purposes of this Section 6.1, no act or
failure to act, on the part of the Executive, shall be considered "willful" if
it is done, or omitted to be done, by the Executive in good faith or with
reasonable belief that his action or omission was in the best interest of the
Company. The Executive shall have the opportunity to cure any such acts or
omissions (other than item (i) above) within fifteen (15) days of the
Executive's receipt of a notice from the Company finding that, in the good faith
opinion of the Company, the Executive is guilty of acts or omissions
constituting "Cause".
6.2 TERMINATION WITHOUT CAUSE. Anything in this Agreement to the contrary
notwithstanding, the Company shall have the right, at any time in its sole and
subjective discretion, to terminate this Agreement without Cause upon not less
than thirty (30) days prior written notice to the Executive. The term
"Termination Without Cause" shall mean the termination of the Executive's
employment for any reason other than those expressly set forth in Section 6.1,
or no reason at all, and shall also mean the Executive's decision to terminate
this Agreement by reason of any act, decision or omission by the Company or the
Board that: (A) materially modifies, reduces, changes, or restricts the
Executive's salary, bonus opportunities, options or other compensation benefits
or perquisites, or the Executive's authority, functions, or duties as Vice
Chairman of the Company; (B) deprives the Executive of his title and position of
Vice Chairman; (C) relocates the Executive without his consent from the
Company's offices at 00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, 00000-0000
to any other location in excess of fifty (50) miles beyond the geographic limits
of Irvine, California, or (D) involves or results in any failure by the Company
to comply with any provision of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive (each a "Good Reason"). In the event the Company or the Executive
shall exercise the termination right granted pursuant to this Section 6.2, the
Company shall, within thirty (30) days of notice of termination to or from the
Executive (as the case may be), pay to the Executive in a single lump-sum
payment the base salary of the Executive for twelve (12) months; provided,
however, that for purposes of calculating the payment pursuant to this sentence,
the Executive's base salary year shall be the highest rate in effect during the
Term. The Company also shall (i) continue to provide to the Executive and his
beneficiaries, at its sole cost, the insurance coverages referred to in Section
4.1 above, and (ii) pay to the Executive in lump single lump-sum payment the
aggregate cost of the
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benefits (other than insurance coverages) under Section 4.1 hereof, in each case
to the extent he would have received such insurance coverages and benefits had
he remained employed by the Company for twelve (12) months. In addition, in the
event of a Termination Without Cause on or before the first anniversary of the
Commencement Date, or if Executive has not been designated as Company's
President or Chief Operating Officer on or before the first anniversary of the
Commencement Date, provided he resigns within ninety (90) days of the first
anniversary of the Commencement Date Executive shall also receive an immediate
payment of Two Hundred Sixty Four Thousand Three Hundred Seventy Five Dollars
($264,375.00).
6.3 TERMINATION FOR DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the Term. If the
Company determines in good faith that the Disability (as defined below) of the
Executive has occurred during the Term, it shall give written notice to the
Executive of its intention to terminate his employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive, provided that, within the
thirty (30) days after such receipt, the Executive shall not have returned to
full-time performance of his duties.
For purposes of this Agreement, "Disability" shall mean the inability
of the Executive to perform his duties to the Company on account of physical or
mental illness or incapacity for a period of one hundred and eighty (180)
consecutive calendar days, or for a period of two hundred ten (210) calendar
days, whether or not consecutive, during any three hundred sixty-five (365) day
period.
6.4 TERMINATION WITHOUT GOOD REASON. Anything in this Agreement to the
contrary notwithstanding, the Executive shall have the right, at any time in his
sole and subjective discretion, to terminate this Agreement without Good Reason
upon not less than thirty (30) days prior written notice to the Company. In the
event the Executive voluntarily terminates his employment hereunder other than
for Good Reason, the respective rights and obligations of the parties hereunder
shall terminate; provided, however, that the Company shall immediately pay the
Executive any amount due and owing pursuant to Articles 3, 4 and 5, prorated to
the date of termination.
6.5 TERMINATION PRIOR TO OR FOLLOWING A CHANGE OF CONTROL. Notwithstanding
the foregoing, in the event the employment of the Executive is terminated during
the six (6) month period immediately prior to, or the first twelve (12) months
following, a Change of Control either (i) by the Executive for Good Reason or
(ii) by the Company other than for Cause, Disability or death, then, the
provisions of Section 6.2 hereof shall not apply, and the Company shall, within
thirty (30) days of notice of termination to the Executive, pay to the Executive
in a single lump-sum payment the base salary that the Executive would have
received if he had remained employed by the Company for two (2) years
(calculated at the highest base salary rate during the Term). In addition, the
Company shall continue for one (1) year to provide the Executive and his
beneficiaries, at its sole cost, the insurance coverage provided in Section 4.1.
For purposes of this Section 6.5, "Term" shall be the period of time of this
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Agreement as defined by Article 1 hereof, which includes any extension thereof
by reason of a Change of Control prior to January 1, 2002.
6.6 OPTIONS. As further consideration for the services rendered by the
Executive during the Term, the Executive shall be granted stock options to
purchase shares of the Company's common stock on the terms and conditions found
in the Executive's applicable Stock Option Agreements. Anything in this
Agreement to the contrary notwithstanding, upon the Executive's termination
under this Article 6, the Company's obligations with respect to any stock option
to purchase shares of the Company's common stock granted to the Executive shall
be determined by the terms and conditions of such option as set forth in the
Executive's written option agreement regarding such option.
ARTICLE 7
PARACHUTE TAX INDEMNITY
7.1 GROSS-UP PAYMENT.
(a) If it shall be determined that any amount paid, distributed or
treated as paid or distributed by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Article 7) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, being hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all federal, state and local taxes
(including any interest or penalties imposed with respect to such taxes),
including without limitation, any income taxes (including any interest or
penalties imposed with respect thereto) and Excise Tax imposed on the Gross-up
Payment, the Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments, provided, however, that in no event will
the amount of the Gross-Up Payment payable pursuant to this Article 7 exceed Two
Hundred Fifty Thousand Dollars ($250,000.00).
(b) The determinations of whether and when a Gross-Up Payment is
required under this Article 7 shall be made by independent tax counsel (the "Tax
Counsel") based on its good faith interpretation of applicable law. The amount
of such Gross-Up Payment and the valuation assumptions to be utilized in
arriving at such determination shall be made by an independent nationally
recognized accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. The Tax Counsel and
Accounting Firm shall initially be appointed by the Company after consultation
in good faith with the Executive and subject to the approval of the Executive
(which approval shall not be unreasonably withheld), provided,
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however, that if the potential amount of the Gross-Up Payment (but for the limit
in Section 7.1(a) above) could exceed Two Hundred Fifty Thousand Dollars
($250,000.00), the Executive shall have the opportunity to appoint a new Tax
Counsel and Accounting Firm after consultation in good faith with the Company.
If the Tax Counsel and Accounting Firm selected by the Company determine that
the amount of the Gross-Up Payment is less than Two Hundred Fifty Thousand
Dollars ($250,000.00), but Executive provides an opinion of a second independent
Tax Counsel that the Gross-Up Payment (but for the limit in Section 7.1(a)
above) could be greater than Two Hundred Fifty Thousand Dollars ($250,000.00),
then Executive shall be entitled to appoint the Tax Counsel and the Accounting
Firm after consultation in good faith with the Company and subject to the
approval of the Company (which approval shall not be unreasonably withheld). All
fees and expenses of any Tax Counsels and Accounting Firms referred to above
shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to
this Article 7, shall be paid by the Company to the Executive within ten (10)
days of the receipt of the Accounting Firm's determination. Any determinations
by the Tax Counsel and Accounting Firm shall be binding upon the Company and the
Executive, provided, however, if it is later determined that there has been an
underpayment of Excise Tax and that Executive is required to make an additional
Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall
provide a similar full gross-up on such additional liability, subject to the
overall Two Hundred Fifty Thousand Dollars ($250,000.00) limit set forth in
Section 7.1(a) above.
(c) For purposes of any determinations made by any Tax Counsel and
Accounting Firm acting under Section 7.1(b) above:
(i) All Payments and Gross-Up Payments with respect to Executive
shall be deemed to be "parachute Payments" under Section
280G(b)(2) of the Code and to be "excess parachute payments"
under Section 280G(b)(1) of the Code that are fully subject to
the Excise Tax under Section 4999 of the Code, except to the
extent (if any) that such Tax Counsel determines in writing in
good faith that a Payment in whole or in part does not
constitute a "parachute payment" or otherwise is not subject to
Excise Tax;
(ii) The value of any non-cash benefits or deferred or delayed
payments or benefits shall be determined in a manner consistent
with the principles of Section 280G of the Code; and
(iii) Executive shall be deemed to pay federal, state and local income
taxes at the actual maximum marginal rate applicable to
individuals in the calendar year in which the Gross-Up Payment
is made, net of any applicable reduction in federal income taxes
for any state and local taxes paid on the amounts in question.
7.2 CLAIMS AND PROCEEDINGS. The Executive shall notify the Company in
writing of any Excise Tax claim by the Internal Revenue Service (or any other
state or local taxing authority) that, if successful, would require the payment
by the Company of a
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Gross-Up Payment. Such notification shall be given as soon as practicable but no
later then twenty (20) business days after the Executive is informed in writing
of such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which it
gives such notice to the Company (or such shorter period ending on the date that
any payment of taxes with respect to such claim is due). If the Company notifies
the Executive in writing prior to the expiration of such period that it desires
to contest such Excise Tax claim, the Executive shall: (i) give the Company any
information reasonably requested by the Company relating to such claim; (ii)
take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company after consultation in good faith with
Executive and subject to approval by Executive (which approval shall not be
unreasonably withheld) under the circumstances set forth in Section 7.1; (iii)
cooperate with the Company in good faith in order to effectively contest such
claim; and (iv) permit the Company to participate in any proceeding relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expense. Without limitation of the
foregoing provisions of this Article 7, if the Gross-Up Payment payable
hereunder (determined on the basis of the amount being contested), together with
any previous Gross-Up Payment made by the Company to the Executive hereunder
(collectively the "Aggregate Gross-Up Payment"), would not exceed Two Hundred
Fifty Thousand Dollars ($250,000.00) (determined without regard to the Two
Hundred Fifty Thousand Dollars ($250,000.00) limit in Section 7.1(a)), the
Company shall control the Excise Tax portion of any proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such Excise Tax claim and may, at its sole
option, either direct the Executive to pay the tax claimed and xxx for a refund
or contest the Excise Tax claim in any permissible manner, and the Executive
agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine. If the Company directs the Executive to
pay such Excise Tax claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest and penalties) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and provided, however, that any Company-directed extension of the
statute of limitations relating to payment of taxes for the Executive's taxable
year with respect to which such contested Excise Tax amount is claimed to be due
shall be effective only if it can be and is limited to the contested Excise Tax
liability. Notwithstanding anything to the contrary herein, the Executive shall
control the settlement or contest, as the case may be, of all non-Excise Tax
issues and of any Excise Tax issues with respect to which the Aggregate Gross-Up
Payment payable hereunder
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(but for the limit in Section 7.1(a) above) would exceed Two Hundred Fifty
Thousand Dollars ($250,000.00). The Executive shall be entitled to settle or
contest, as the case may be, any non-Excise Tax issue raised by the Internal
Revenue Service or any other taxing authority, so long as such action does not
have a material adverse effect on an Excise Tax contest being pursued by and
under the control of the Company.
7.3 REFUNDS. If, after the Executive's receipt of an amount advanced by the
Company pursuant to this Article 7 for payment of Excise Taxes, the Executive
files an Excise Tax refund claim and receives any refund with respect to such
claim, the Executive shall (subject to the Company's complying with the
requirements of this Article 7) except as provided below, promptly pay to the
Company the amount of any such refund of Excise Tax (together with any interest
paid or credited thereon, but after any and all taxes applicable thereto), plus
the amount (after any and all taxes applicable thereto) of the refund (if any is
applied for and received) of any income tax paid by Executive with respect to
and as a result of his prior receipt of any previously pay Gross-Up Payment
indemnifying Executive with respect to any such Excise Tax later so refunded. In
the event Executive files for a refund of the Excise Tax and such request would,
if successful, require Executive to refund any amount to the Company pursuant to
this provision, then Executive shall be required to seek a refund of the Income
Tax portion of any corresponding Gross-Up Payment so long as such refund request
would not have a material adverse effect on Executive (which determination shall
be made by independent tax counsel selected by Executive after good faith
consultation with the Company and subject to approval of the Company, which
approval shall not be unreasonably withheld). Notwithstanding the above,
Executive shall have no obligation to pay any portion of any such tax refund(s)
to the Company if and to the extent that the Excise Tax to which such refund
relates was not eligible for a Gross-Up Payment by reason of the Two Hundred
Fifty Thousand Dollars ($250,000.00) limit in Section 7.1(a) above. For this
purpose, if the total Excise Tax paid with respect to Executive exceeds the
maximum amount eligible for Gross-Up Payment coverage by reason of the Two
Hundred Fifty Thousand Dollars ($250,000.00) limit in Section 7.1(a) above, any
subsequent Excise Tax refunds shall first be applied against the portion of any
Excise Tax payments that are not covered by the Gross-Up Payments provided under
this Article 7. If, after the Executive's receipt of an amount advanced by the
Company pursuant to this Article 7, a determination is made that the Executive
shall not be entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
the Gross-Up Payment required to be paid.
ARTICLE 8
NO MITIGATION OR OFFSET; INSURANCE
8.1 NO MITIGATION OR OFFSET. The Executive shall not be required to seek
other employment or to reduce any severance benefit payable to him under Article
6 hereof, and no severance benefit shall be reduced on account of any
compensation
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received by the Executive from other employment. The Company's obligation to pay
severance benefits under this Agreement shall not be reduced by any amount owed
by the Executive to the Company.
8.2 INDEMNIFICATION, INSURANCE.
(a) If the Executive is a party or is threatened to be made a party
to any threatened, pending, or completed claim, action, suit or proceeding, or
appeal therefrom, whether civil, criminal, administrative, investigative or
otherwise, because he is or was an officer, director or employee of the Company,
or at the express request of the Company is or was serving, for purposes
reasonably understood by him to be for the Company, as a director, officer,
partner, employee, agent or trustee (or in any other capacity of an association,
corporation, general or limited partnership, joint venture, trust or other
entity), the Company shall indemnify the Executive against any reasonable
expenses (including attorneys' fees and disbursements), and any judgments, fines
and amounts paid in settlement incurred by him in connection with such claim,
action, suit, proceeding or appeal therefrom to the extent such expenses,
judgments, fines and amounts paid in settlement were not advanced by the Company
on his behalf pursuant to subsection (b) below, to the fullest extent permitted
under Delaware law. The Company shall provide Executive with D&O insurance
coverage at least as favorable to Executive as what the Company maintains as of
the date hereof or such greater coverage as the Company may maintain from time
to time thereafter. In addition to his rights hereunder, if Executive becomes a
Director of the Company he shall receive the benefit of any and all rights of
indemnity provided to any Company Director pursuant to Company practice, policy,
agreement, Bylaws, Certificate of Incorporation or otherwise.
(b) Provided that the Executive shall first have agreed to in writing
to repay such amounts advanced if it is determined by an arbitrator or court of
competent jurisdiction that the Executive was not entitled to indemnification,
upon the written request of the Executive specifying the amount of a requested
advance and the intended use thereof, the Company shall indemnify Executive for
his expenses (including attorneys' fees and disbursements), judgements, fines
and amounts paid in settlement incurred by him in connection with such claim,
action, suit, proceeding or appeal whether civil, criminal, administrative,
investigative or otherwise, in advance of the final disposition of any such
claim, action, suit, proceeding or appeal therefrom to the fullest extent
permitted under Delaware law.
ARTICLE 9
RESTRICTIVE COVENANTS
9.1 COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. During the Term and
following termination of this Agreement, the Executive agrees that, without the
Company's prior written consent, he will not use or disclose to any person,
firm, association, partnership, entity or corporation, any confidential
information concerning: (i) the business, operations or internal structure of
the Company or any division or part thereof; (ii) the customers of the Company
or any division or part thereof; (iii) the
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financial condition of the Company or any division or part thereof; and (iv)
other confidential information pertaining to the Company or any division or part
thereof, including without limitation, trade secrets, technical data, marketing
analyses and studies, operating, procedures, customer and/or inventory lists, or
the existence or nature of any of the Company's agreements or agreements of any
division thereof (other than this Agreement and any other option or compensation
related agreements involving, the Executive); provided, however, that the
Executive shall be entitled to disclose such information: (i) to the extent the
same shall have otherwise become publicly available (unless made publicly
available by the Executive); (ii) during, the course of or in connection with
any actual or potential litigation, arbitration, or other proceeding based upon
or in connection with the subject matter of this Agreement; (iii) as may be
necessary or appropriate to conduct his duties hereunder, provided the Executive
is acting, in good faith and in the best interest of the Company; (iv) as may be
required by law or judicial process or (v) if the information is generally known
to personnel in Executive's trade or business.
9.2 COVENANT NOT TO COMPETE. The Executive acknowledges that he has
established and will continue to establish favorable relations with the
customers, clients and accounts of the Company and will have access to trade
secrets of the Company. Therefore, in consideration of such relations and to
further protect trade secrets, directly or indirectly, of the Company, the
Executive agrees that during the Term and for a period of one (1) year from the
date of termination of the Executive, the Executive will not, directly or
indirectly, without the express written consent of the Board:
(i) own or have any interest in or act as an officer, director,
partner, principal, employee, agent, representative, consultant
or independent contractor of, or in any way assist in, any
business which is engaged, directly or indirectly, in any
business competitive with the Company in those automotive markets
and/or automotive products lines in which the Company competes
within the United States at any time during the Term, or become
associated with or render services to any person, firm,
corporation or other entity so engaged ("Competitive
Businesses"); provided, however, that the Executive may own
without the express written consent of the Company not more than
two (2) percent of the issued an outstanding securities of any
company or enterprise whose securities are listed on a national
securities exchange or actively traded in the over the counter
market;
(ii) solicit clients, customers or accounts of the Company for, on
behalf of or otherwise related to any such Competitive Businesses
or any products related thereto; or
(b) solicit any person who is or shall be in the employ or service of
the Company to leave such employ or service for employment with the Executive or
an affiliate of the Executive.
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Notwithstanding the foregoing, if any court determines that the
covenant not to compete, or any part thereof, is unenforceable because of the
duration of such provision or the geographic area or scope covered thereby, such
court shall have the power to reduce the duration, area or scope of such
provision to the extent necessary to make the provision enforceable and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
9.3 SPECIFIC PERFORMANCE. Recognizing that irreparable damage will result
to the Company in the event of the breach or threatened breach of any of the
foregoing, covenants and assurances by the Executive contained in Sections 9.1
and 9.2 hereof, and that the Company's remedies at law for any such breach or
threatened breach may be inadequate, the Company and its successors and assigns,
in addition to such other remedies which may be available to them, shall be
entitled to an injunction to be issued by any court of competent jurisdiction
ordering compliance with this Agreement or enjoining and restraining the
Executive, and each and every person, firm or company acting in concert or
participation with him, from the continuation of such breach. The obligations of
the Executive and rights of the Company pursuant to this Article 9 shall survive
the termination of this Agreement. The covenants and obligations of the
Executive set forth in this Article 9 are in addition to and not in lieu of or
exclusive of any other obligations and duties the Executive owes to the Company,
whether expresses or implied in fact or law.
ARTICLE 10
GENERAL PROVISIONS
10.1 FINAL AGREEMENT. This Agreement is intended to be the Final, complete
and exclusive agreement between the parties relating to the employment of the
Executive by the Company and all prior or contemporaneous understandings,
representations and statements, oral or written, are merged herein. Except with
regard to any Xxxxxxx.xxx, Inc. options to purchase common stock held by
Executive, which will be allowed to vest according to their terms, including the
terms of the Xxxxxxx.xxx, Inc. Change of Control Benefit Plan and the certain
letter to Executive dated January 16, 2001, pertaining thereto, this Agreement
supersedes all of Executive's compensation agreements with Xxxxxxx.xxx, Inc. and
Executive expressly acknowledges that he is not and will not be entitled to any
severance payments under any Xxxxxxx.xxx, Inc. agreement or change of control
plan. Attached as Exhibit A hereto is a listing of Executive's Xxxxxxx.xxx, Inc.
options which have vested or will vest on or before April 1, 2001 and those
options which remain unvested as of April 1, 2001. Company agrees that of
Executive's unvested Options listed on Exhibit A, at the time of the
Commencement Date, one hundred percent (100%) of such then unvested options will
immediately vest upon the Commencement Date pursuant to the terms of the
Xxxxxxx.xxx, Inc. Change of Control Benefit Plan and such options shall be
converted into options in xxxxxxxxx.xxx inc. pursuant to the terms of the
Acquisition Agreement dated April 11, 2001 entered into by and among Company,
Xxxxxxx.xxx, Inc. and Autobytel Acquisition I Corp. No modification, waiver,
amendment, discharge or change of this Agreement shall be valid
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unless the same is in writing and signed by the party against which the
enforcement thereof is or may be sought.
10.2 NO WAIVER. No waiver, by conduct or otherwise, by any party of any
term, provision, or condition of this Agreement, shall be deemed or construed as
a further or continuing waiver of any such term, provision, or condition nor as
a waiver of a similar or dissimilar condition or provision at the same time or
at any prior or subsequent time.
10.3 RIGHTS CUMULATIVE. The rights under this Agreement, or by law or
equity, shall be cumulative and may be exercised at any time and from time to
time. No failure by any party to exercise, and no delay in exercising, any
rights shall be construed or deemed to be a waiver thereof, nor shall any single
or partial exercise by any party preclude any other or future exercise thereof
or the exercise of any other right.
10.4 NOTICE. Except as otherwise provided in this Agreement, any notice,
approval, consent, waiver or other communication required or permitted to be
given or to be served upon any person in connection with this Agreement shall be
in writing. Such notice shall be personally served, sent by telegram, tested
telex, fax or cable, or sent prepaid by either registered or certified mail with
return receipt requested or Federal Express and shall be deemed given (i) if
personally served or by Federal Express, when delivered to the person to whom
such notice is addressed, (ii) if given by telegram, telex, fax or cable, when
sent, or (iii) if given by mail, two (2) business days following deposit in the
United States mail. Any notice given by telegram, telex, fax or cable shall be
confirmed in writing), by overnight mail or Federal Express within forty-eight
(48) hours after being sent. Such notices shall be addressed to the party to
whom such notice is to be given at the party's address set forth below or as
such party shall otherwise direct.
If to the Company: xxxxxxxxx.xxx inc.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: General Counsel
If to the Executive: Xxxxxxx Xxxxxxxx
00000 Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx & Xxxxx
000000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
10.5 SUCCESSORS. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the parties;
hereto.
10.6 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without giving effect to
the principles
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of conflict of laws thereof, except that the indemnification provisions of
Section 8.2 shall be governed by Delaware law without regard to conflict of law
principles.
10.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one instrument.
10.8 SEVERABILITY. The provisions of this Agreement are agreed to be
severable, and if any provision, or application thereof, is held invalid or
unenforceable, then such holding shall not affect any other provision or
application.
10.9 CONSTRUCTION. As used herein, and as the circumstances require, the
plural term shall include the singular, the singular shall include the plural,
the neuter term shall include the masculine and feminine genders, and the
feminine term shall include the neuter and the masculine genders.
10.10 ARBITRATION. Any controversy or claim arising out of, or related to,
this Agreement, or the breach thereof, shall be settled by binding arbitration
in the City of Irvine, California, in accordance with the employment arbitration
rules then in effect of the American Arbitration Association, and the
arbitrator's decision shall be binding and final, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. Each party
hereto shall pay its or their own expenses incident to the negotiation,
preparation and resolution of any controversy or claim arising out of, or
related to, this Agreement, or the breach thereof, provided, however, the
Company shall pay and be solely responsible for any attorneys' fees and expenses
and court or arbitration costs incurred by the Executive as a result of a claim
that the Company has breached or otherwise failed to perform this Agreement or
any provision hereof to be performed by the Company if the Executive prevails in
the contest in whole or in part.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
xxxxxxxxx.xxx inc.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
------------------------------
Xxxxxxx X. Xxxxxxxx
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EXHIBIT A
OUTSTANDING XXXXXXX.XXX, INC. OPTIONS
[ALL NUMBERS NEED TO BE CONFIRMED]
AUTOWEB
STOCK OPTION VESTED UNVESTED
GRANT NUMBER TYPE DATE AMOUNT PRICE AS OF 4/1/01 AS OF 4/1/01
------------ ---- ---- ------ ----- ------------ ------------
B00780 (NQ) 10/27/99 97,030 $8.63 26,546 70,484(1)
A00780 (ISO) 10/27/99 57,970 $8.63 25,120 32,850(1)
929 (ISO) 5/12/00 7,292 $3.25 0 7,292(2)
930 (NQ) 5/12/00 62,708 $3.25 14,584 48,124(2)
1244 (ISO) 1/23/01 40,634 $0.50 1 40,633(3)
1245 (NQ) 1/23/01 109,366 $0.50 6,249 103,117(3)
------- ------ -------
TOTAL 375,000 72,500 302,500
======= ====== =======
--------
(1) Grant vested 10% immediately, 15% on one year anniversary, monthly at
________% thereafter.
(2) Options vest over 48 months with a one year cliff and monthly vesting
thereafter.
(3) Grant vests monthly at _______%.
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